Gajam Murali vs Satyanarayana Reddy and Others

B. Chandra Kumar, J.—Aggrieved by the award dated 20.06.2005 passed in OP No. 699 of 2002 by the Motor Accidents Claims Tribunal-cum-V Additional District Judge, Nizamabad, whereby and whereunder the Tribunal awarded compensation of Rs. 50,000/- with interest at 9% p.a., from the date of petition till realization, out of the total claim of Rs. 3,00,000/-, the claimant, who is the son of the deceased, filed the present appeal seeking enhancement of compensation.

The parties hereinafter will be referred to as they are arrayed before the Tribunal for the sake of convenience.

The brief facts of the case are as follows. That on 07.02.2002 at about 2.00 PM the deceased was proceeding as a pillion rider on his scooter bearing No. AAJ-894 from Gupanpally Tea junction to Nizamabad. PW.2 was riding the said scooter. When the said scooter reached near main road of Nizamabad, it is alleged that the offending lorry bearing No. AP-37U-1139 came in a rash and negligent manner at high speed and dashed the scooter. As a result of which the deceased received injuries and subsequently died on 09.02.2002 while undergoing treatment in the hospital. The case of the claimant is that the deceased was aged about 50 years as on the date of accident. His further case is that the deceased was working as Mason, earning Rs. 5,000/- per month and contributing his entire income to the family.

The first respondent-owner of the lorry remained ex parte. The second respondent-Insurance Company contested the matter on various grounds. The averments of the claimant with regard to age and income of the deceased have been denied. It is stated in the counter that the claimant in collusion with the first respondent falsely involved the lorry in the accident, but there is no specific averment that the rider of the scooter had driven the scooter in a rash and negligent manner and contributed in the accident. The Insurance Company has made general denial of the averments made by the claimant.

The Tribunal framed necessary issues.

On behalf of the claimant PWs.1 and 2 were examined and Ex.sA1 to A7 were marked. On behalf of the respondents, none were examined and no documents were marked.

On the issue of negligence, the Tribunal came to the conclusion that the accident occurred due to negligence of both the drivers and accordingly held that the claimant is entitled to a sum of Rs. 50,000/- under no fault liability.

Learned counsel for the claimant submits that the Tribunal failed to appreciate the evidence of PW.2 and also the documentary evidence filed by the claimant and wrongly came to the conclusion that both the drivers are responsible for the accident. It is further submitted that the Tribunal has not awarded any amount towards loss of dependency and other amounts.

The main point that arises for consideration is whether both the drivers were negligent and whether the claimant is entitled for enhancement of compensation.

It is not in dispute that the claimant has specifically averred that the accident occurred due to negligence of the lorry driver. PW.1 is the son of the deceased. He says that he has witnessed the accident. He further deposed that the accident occurred due to rash and negligent driving of the driver of the lorry. Certain documents have been marked in his evidence. He denied the suggestion that the scooterist himself dashed the lorry and there is no negligent on the part of the driver of the lorry. PW.2 was driving the scooter at the time of accident. According to him, on the date of accident they were returned to their house on the scooter and the deceased was a pillion rider. On the way, when they were near Gupanpally village the offending lorry came in opposite direction at high speed and dashed against the scooter and that the accident occurred due to negligence of the driver of the lorry tanker. He denied the suggestion that the accident occurred due to his own negligence. However, the fact remains that the driving license of PW.2 is not filed. Of course, PW.2 denied the suggestion that he is not having driving license. Admittedly, the driver of the lorry is not examined in this case. As far as oral evidence is concerned, except the evidence of PWs.1 and 2 there is no other evidence on record. FIR is lodged by one Ramula Sailu. The contents of FIR reveal that the said de facto complainant Ramula Sailu stated in the FIR that the moment scooter came on the main road the tanker dashed against the scooter. Thus, it appears that the scooter was coming from a road which connected to the main road. Ex.A2 is the charge sheet filed by the police. The police alleged in the charge sheet that the accident occurred due to negligence of the driver of the oil tanker. Ex.A6 is the report of the Motor Vehicles Inspector, which shows that there is no mechanical defect in the lorry.

The Tribunal holding that PW.1 deposed that after the accident his father was shifted to Government Hospital, Nizamabad, but however in the pleadings it is stated that the deceased was shifted to Amrutha Laxmi Multi Specialty Hospital, Nizamabad, and the FIR does not contain the name of PW.1, disbelieved the version of PW.1. A reading of the pleadings go to show that what claimant had stated is that the deceased was shifted to hospital and there he died on 09.02.2002 in Amurtha Laxmi Multi Specialty Hospital, Nizamabad. The claimant did not specifically state that soon after the accident the deceased was shifted to Amrutha Laxmi Multi Specialty Hospital, Nizamabad. Of course it is stated that the deceased died in the hospital on 09.02.2002. FIR is only a report given to the police to initiate investigation. It is settled law that the FIR need not contain all the details. The names of all the eye witnesses gathered at the place of accident cannot be and need not be mentioned in the FIR. Merely because the name of PW.1 is not mentioned in the FIR his evidence cannot be disbelieved. The Tribunal committed an error on this aspect. The Tribunal has mainly relied upon the version given in the FIR that the scooter was coming from bypass road and while entering into the main road the rider of the scooter had not observed the vehicles proceeding on the main road and that high speed is not the criteria to declare that the driver of the lorry was negligent in driving the vehicle. First of all Ramula Sailu who lodged the FIR is not examined in this case. When the de facto complainant the first informant is not examined the contents of FIR cannot be looked into. The contents of the FIR have to be proved in accordance with law. They can be considered only for the purpose of corroboration and contradiction. The entire police record in fact including the charge sheet, 161 Cr.P.C., statements etc., cannot be looked into by the Courts while appreciating evidence, unless specific omissions or contradictions have been marked by confronting those statements with the persons who gave those statements before the police or the first informant who lodged the FIR. Therefore, the very approach of the Tribunal in reading the contents of FIR is not correct. The second aspect is, admittedly, the accident occurred in a village near a hotel. Vehicles while proceeding on the main road, of course can maintain speed, but whenever any vehicle is approaching a village the driver must slow down the vehicle and keep it under his control. While passing through the villages or even the outskirts of the villages the drivers should slow down their vehicles. It is but natural in the villages people may walk along the road, cattle may be crossing the road and even children may be crossing the road. Therefore, if a driver knowing that he is passing through the village does not keep the vehicle under control, it is clear that the driver is negligent in driving his vehicle. There is nothing on record to show that the scooterist did not give any horn. There is nothing on record to show that the lorry driver was given horn while passing through the main road at the place of accident. In the absence of any evidence to show that the scooterist was negligent, the Tribunal committed an error in holding that the rider of the scooter is also negligent and contributed in the accident, merely because the scooterist emerged on the main road at the time of accident. In this case, admittedly, the respondents have not examined the driver of the lorry. Merely because the scooterist had not produced his driving license that itself cannot be a ground that the scooterist contributed in occurring the accident. Therefore, I hold that the findings of the Tribunal are perverse, since there is no other evidence except the evidence of PWs.1 and 2 and all the documents filed by the claimant go to show that the accident occurred due to negligence of the lorry driver and there is no necessity to take a contra view, particularly in the absence of any rebuttal evidence in this case. Therefore, I hold that the accident occurred due to negligence of the lorry driver.

Coming to the quantum of compensation, it is not in dispute that the deceased was aged about 50 years. According to PW.1 the deceased was working as Mason and earning Rs. 5,000/- per month. The accident occurred in the year 2002. Having regard to the nature of work, I consider it just and reasonable to take the income of the deceased at Rs. 4,000/- and in view of the future prospects of increase of his income his income is taken at Rs. 4,500/- per month. If 1/3rd is deducted towards personal expenses of the deceased, the loss of dependency would come to Rs. 3,000/- per month and annual loss of dependency is Rs. 36,000/-. If the same is multiplied with ''13'', total loss of earnings would come to Rs. 4,68,000/-. The claimant is also entitled to Rs. 25,000/- towards funeral expenses. Thus, the claimant is entitled to total compensation of Rs. 4,93,000/-.

It is settled law that irrespective of the claim made by the claimants, the Courts have to award just and reasonable compensation, however, the claimants have to pay deficit court fee.

Accordingly, the MACMA is allowed awarding compensation of Rs. 4,93,000/-. The rate of interest shall be at 7.5% p.a., from the date of petition till realization. The claimant is directed to pay deficit court fee before drafting the decree. However, in the circumstances, no costs.

As a sequel, the miscellaneous petitions, if any, pending in this appeal shall stand closed.